The law and the war

Gowned warriors

ALONGSIDE the bombs and the propaganda, the war between NATO and Serbia has featured an unusual amount of debate about international law. This week the legal battle moved into the courtoom. On May 10th the International Court of Justice (ICJ) in The Hague began hearing separate cases brought against ten NATO countries by Yugoslavia. It argues that their use of force is illegal and charges them with war crimes and genocide. It chronicles a long list of damage to non-military installations and claims that 1,000 civilians, including 19 children, have been killed so far. Slobodan Milosevic's lawyers are asking the court to order an immediate halt to the bombing. Lawyers for the NATO countries have dismissed the charges, especially that of genocide, as absurd and hypocritical, and argue that the court should throw all the cases out on procedural grounds.

What is Mr Milosevic up to? By going to the court he is inviting greater legal scrutiny of his own government's brutalities in Kosovo. The ICJ is likely to take months, if not years, to decide whether it has jurisdiction in the cases (without the agreement of NATO countries, it probably does not). Even if it decides that it does, it could take years to produce a judgment. It is still pondering charges of genocide made by Bosnia and Yugoslavia against each other in 1993.

Nevertheless, going to the court looks like a clever move on Mr Milosevic's part because the unpalatable truth is that, though his government is in gross breach of international law, so, as the law stands, is NATO. The alliance's bombing campaign may have been undertaken to protect a nine-tenths majority of Kosovo's population, but without a Security Council mandate it breaches the UN charter, the most important agreement in international law.

This is no mere technicality. Even legal experts who want to see humanitarian law more widely enforced are queasy. “It's very dangerous. NATO is making it much easier for other states to intervene in the future,” says Michael Byers, an Oxford don. Moreover, Mr Milosevic may yet embarrass a reluctant court in the next few weeks into ordering a halt to the bombing as a “provisional measure” before it decides on jurisdictional issues. NATO would ignore the order—thereby hurting a campaign being waged in the name of international law, while giving Mr Milosevic a propaganda coup.

By bringing the cases to the court, Mr Milosevic has also managed to spotlight NATO's handling of the war. Its bombing campaign may be one of the most precise and careful in history, in stark contrast to Serbia's murderous campaign against Albanian civilians in Kosovo. But, by advertising the sophistication of its weapons, NATO has also raised the standard by which it must be judged, at least in legal terms.

Its refusal to risk any casualties on its own side—by avoiding lower-level (and thus more accurate) bombing raids—has led, by its own admission, to civilian casualties. On some interpretations, this alone may constitute a war crime. So may using cluster bombs in populated areas. Both Mary Robinson, the UN high commissioner for human rights, and Louise Arbour, the prosecutor for the war-crimes tribunal in The Hague (separate from the ICJ), say that NATO's behaviour, as well as Mr Milosevic's, is subject to the laws of war and may yet be investigated.

Ms Arbour's main job, of course, is to investigate Mr Milosevic and his minions. Her staff have been inundated with accounts of atrocities in Kosovo. But politics may once again save Mr Milosevic from legal accountability. The tribunal's investigators could almost certainly have indicted him for crimes committed under his command in Bosnia, but were denied the evidence gathered by NATO intelligence agencies required to build a case. And he was deemed essential to achieving peace at Dayton. Though some information about Kosovo has been handed to prosecutors, whether this includes intelligence on Mr Milosevic himself remains unclear. If NATO needs his help in finding a way out of this war too, he may yet again prove too necessary to bring to justice.